BOARD DATE:	  11 June 2014

		DOCKET NUMBER:  AR20130017344 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a medical retirement.  He also requests a personal appearance before the Board.

2.  The applicant states:

	a.  he wants his retirement revised from the current status to totally-permanently disabled/unemployable in accordance with Department of Veterans Affairs (VA) and Social Security Administration (SSA) awards.  

	b.  his retirement in January 2000 was fraudulent and he was denied an  opportunity for a disability retirement.

	c.  the Army deliberately sought to deny him access to the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) evaluation process because he had contacted the Staff Judge Advocate about the dismal handling of his case.

3.  The applicant provides several letters disputing the Board's decisions to administratively close his applications for review.  His first request for review, submitted on 1 August 2012, was administratively closed in October 2012, supposedly for failure to perfect the application.  His second application was closed in February 2013 because he failed to provide his Army medical records and any other records that support his stated issues.  His third request was closed on 17 June 2013 because he did not provide a signed and completed application.     
4.  He also provides:

* Letter, dated 11 November 2013, he wrote to President Obama
* Letter, dated 8 November 2013, he wrote to the Secretary of the Army
* Rebuttal of denial of disability entitlements, dated 25 October 2013
* Letter, dated 14 February 2014, from a Member of Congress
* Service personnel records
* Limited service medical records   

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having prior active enlisted service in the U.S. Air Force and Regular Army (RA), the applicant was appointed as a warrant officer one on 28 March 1985 and entered active duty.  He was promoted to:

* chief warrant officer two on 28 March 1987
* chief warrant officer three in the RA on 1 May 1993

3.  He provides medical records, dated 7 October 1997, which show:

* he was diagnosed with inflammatory bowel disease 
* the entry "Date of Discharge:  Awaiting Medical Evaluation Board" and "Recommendations:  Present to the Physical Evaluation Board for determination of fitness for duty"
* the entry "Date of Discharge: N/A" (Not applicable) and the recommendation included several medications 

4.  He provides a memorandum for record, dated 10 June 1998, which states he attended Aviation Warrant Officer Advanced Course from August 1996 to November 1996 at Fort Rucker, AL.  During this course of instruction, he became ill with what was later diagnosed (February 1997) as ulcerative colitis, an incurable gastrointestinal disorder.

5.  His Officer Evaluation Report covering the period 1 October 1997 through 
19 August 1998 shows he was rated "Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his senior rater.

6.  In September 1998, his aviation service was terminated effective 
15 December 1997 due to medical incapacitation. 

7.  On 7 January 1999, he submitted a voluntary request for retirement on 
31 January 2000.  His request also states "I have read AR (Army Regulation) 600-8-24, paragraphs 6-6 and 6-7.  I am responsible for ensuring that a physical examination is completed not earlier than four months nor later than one month prior to my approved retirement date or start date of transition leave, whichever is earlier (subject physical to be arranged through coordination with my unit of assignment).  I am aware that the purpose of this examination is to ensure that my medical records reflect as accurately as possible my state of health on retirement and to protect my interests and those of the Government.  I also understand that my retirement will take effect on the requested date and that I will not be held on active duty to complete this examination."

8.  He provides a DA Form 4187 (Personnel Action), dated 12 January 2000, which shows he requested an extension on active duty for a pending medical and disability evaluation.  On 26 January 2000, his request was returned without action.  The Adjutant General at Fort McPherson, GA stated:

	a.  a check with the medical treatment facility (MTF) reflects the applicant is not pending an MEB/PEB at this time.

	b.  an officer who requests (or is scheduled for) retirement and has a medical problem (or becomes hospitalized) will be evaluated by the commander (or designated representative) of the MTF to determine if referral to a PEB is necessary.  When the officer is referred to the PEB the MTF will promptly notify the Commander, Personnel Command.  The PEB Liaison Officer must provide the officer's medical condition and scheduled date of the PEB.

	c.  an officer found fit for duty by a PEB will retire on the first day of the month following the month the officer is found fit.

	d.  when a PEB is not necessary, but additional medical care is, a nondisability retirement will be processed.  Medical treatment will continue up to and after (if necessary) the approved retirement date.  The retirement date will not be changed because of medical treatment. 
 
9.  On 31 January 2000, he retired in the rank of chief warrant officer three.

10.  There is no evidence in the available records that shows he had an MEB.

11.  Records show the VA granted him service connection for:

* major depressive disorder  – 50%
* sarcoidosis – 30%
* colitis – 30%
* intervertebral disc syndrome – 20%

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  It states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.

15.  Army Regulation 635-40 also states once a Solder has been enlisted, inducted, or commissioned, the fact that the Soldier may later fall below initial entry physical standards does not, in itself, authorize separation or retirement unless it is also established that the Soldier is unfit because of physical disability.  Likewise, a lack of special skills in demand, inability to meet physical standards established for specialized duty such as flying, or transfer between components or branches within the Army, does not, in itself, establish eligibility for disability, separation or retirement.  

16.  The Medline Plus website defines ulcerative colitis as a disease that causes inflammation and sores, called ulcers, in the lining of the rectum and colon.  It is one of a group of diseases called inflammatory bowel disease.

17.  Paragraph 3-5 (Abdominal and gastrointestinal defects and diseases) of Army Regulation 40-501 (Standards of Medical Fitness) shows ulcerative colitis is a cause for referral to an MEB, except when responding well to treatment.

18.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his retirement in January 2000 was fraudulent and he was denied an opportunity for a disability retirement.

2.  Evidence shows he was diagnosed with inflammatory bowel disease in October 1997.

3.  The governing regulation states:

	a.  once a Solder has been commissioned the fact that the Soldier may later fall below initial entry physical standards does not, in itself, authorize separation or retirement unless it is also established that the Soldier is unfit because of physical disability.  

	b.  a lack of special skills in demand, including inability to meet physical standards established for specialized duty such as flying, does not, in itself, establish eligibility for disability, separation or retirement.  





4.  Evidence also shows:

	a.  on 7 January 1999, he submitted a voluntary request for retirement on 
31 January 2000.  In his request he acknowledged he was responsible for ensuring that a physical examination was completed prior to his approved retirement date or start date of transition leave, whichever is earlier.  He also indicated he was aware that the purpose of this examination is to ensure that his medical records reflect as accurately as possible his state of health on retirement and to protect his interests and those of the Government.  

	b.  in January 2000, he requested an extension on active duty for a pending medical and disability evaluation, but his request was returned without action because  he was not pending an MEB/PEB at that time.  The Adjutant General at Fort McPherson, GA informed him that (1) an officer who requests retirement and has a medical problem will be evaluated by the commander (or designate representative) of the MTF to determine if referral to a PEB is necessary; (2) an officer found fit for duty by a PEB will retire on the first day of the month following the month the officer is found fit; and (3) when a PEB is not necessary, but additional medical care is, a nondisability retirement will be processed.  

	c.  the available record is void of any documents that show he underwent an MEB.  
	
5.  In the absence of evidence to the contrary, it must be presumed he underwent a physical examination prior to his retirement or his medical records were reviewed by a Medical Corps officer.  

6.  It is acknowledged he was diagnosed with inflammatory bowel disease in 1997 and apparently treated with medication.  However, evidence of record shows he was rated "Outstanding Performance, Must Promote" and "Best Qualified" by his raters on his final OER, which suggests he must have been responding well to treatment.  Therefore, there is no basis for granting the applicant's request for a medical retirement.  

7.  It is acknowledged the VA has granted him an overall or combined 80% disability rating for various medical conditions.  However, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different laws and its own policies and regulations, the VA, has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only those conditions found to be unfitting.

8.  His request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision of his case.  Therefore, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _ X  _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20130017344





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ABCMR Record of Proceedings (cont)                                         AR20130017344



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